FCC tries to keep old Fox indecency case alive

In the wake of the Second Circuit’s ruling challenging the FCC’s indecency enforcement framework, kicked off over a case involving fleeting expletives, Fox Television tried to get a much older case tossed out of the DC Circuit. FCC says the case should be stayed in anticipation of possible clarity supplied by the Supreme Court.

The case in the DC Circuit names Fox O&Os in Washington, Detroit and Tampa-St. Petersburg, and concerns the airing of an episode of the short-lived “Married by America” back in 2003.

FCC argued that there was nothing fleeting about the content it found indecent. The Commission described it as a program “…involving repeated indecent images, specifically, visual depictions of strippers attempting to lure guests into sexually compromising positions at bachelorette and bachelor parties.”

The Second Circuit ruling found problems with the FCC’s fleeting indecency policy and went further, finding problems with the entire indecency regime. The FCC is considering an appeal to the Supreme Court.FCC said Fox’s “premature attempt” to get this case thrown out on the heels of the incomplete Second Circuit case should be rejected. “Although not binding on this Court and, in any event, distinguishable on its facts, Fox v. FCC now squarely presents for consideration by the Supreme Court the constitutionality of the FCC’s indecency policy.”

The FCC, in justifying its request for a stay, argued, “If certiorari is sought again and granted on the constitutional question presented by that case, the Supreme Court’s decision necessarily will inform the issues here. Considerations of judicial economy therefore dictate that these proceedings await the final resolution of that question.”

RBR-TVBR observation: The litigation of the FCC’s indecency policy has been piecemeal. One could speculate that it was an attempt to underpin various segments of the overall body of regulation and thus build a foundation under the whole. The danger has always been that the battle over one segment would call the whole into question, and that is pretty much what the fleeting expletive battle has done. 2011 will be a very interesting year on the indecency front.